Theno v. Jess et al

Filing 7

ORDER signed by Chief Judge Pamela Pepper on 3/12/2025 GRANTING 6 plaintiff's motion for extension of time to appeal. Plaintiff's notice of appeal due by 4/2/2025. (cc: all counsel and mailed to Robert Theno, 4590 S. Nicholson Ave., Unit 308, Cudahy, WI 53110)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT J. THENO,
Plaintiff,
Case No. 24-cv-1513-pp
v.
JAQUELINE JESS RUBEMEYER,
F. DENNIS ALERDING
and JUDGE JOSEPH M. HOOD,
Defendants.

ORDER GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO
FILE APPEAL (DKT. NO. 6)

On November 21, 2024, the plaintiff—who is representing himself—filed
a complaint alleging that multiple defendants, including two attorneys and a
federal judge, caused him to be falsely convicted of a crime. Dkt. No. 1. On
January 31, 2025, the court screened the complaint and dismissed the case for
failure to state a claim upon which a federal court can grant relief. Dkt. No. 3.
The clerk entered judgment that same day. Dkt. No. 4. Thirty-four days later,
on March 6, 2025, the plaintiff filed a motion for an extension of time to file an
appeal. Dkt. No. 6. He states that he was very ill for the prior three weeks and
could not work on his appeal. Id.
The plaintiff needed to file his notice of appeal within thirty days of the
entry of judgment. Federal Rule of Appellate Procedure 4(a)(1)(A). The court
may extend that deadline if a party requests an extension no later than thirty
days after deadline to appeal and shows good cause or excusable neglect for
not being able to meet the thirty-day deadline. Fed. R. App. P. 4(a)(5)(A).
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Thirty days from January 31, 2025 was March 2, 2025. But because
March 2, 2025 was a Sunday, the plaintiff would have had until the next
business day—March 3, 2025—by which to file his appeal. Fed. R. App. P.
26(a)(1). That means the plaintiff had thirty more days from that date—until
April 2, 2025—to request an extension of time to appeal. The court received the
plaintiff’s extension request on March 6, so it is timely.
The court next must determine whether the plaintiff has shown good
cause or excusable neglect. The plaintiff says that he was ill for three weeks
and could not work on his appeal. A serious illness can constitute good cause
for a delay in filing a notice of appeal. See Jaburek v. Foxx, 813 F.3d 626, 630
(7th Cir. 2016) (affirming that counsel’s diagnosis with gout constituted good
cause for an extension of time to appeal). The court will grant the plaintiff’s
motion for an extension of time to appeal.
The plaintiff asked for thirty more days to file his appeal. But the court
can grant an extension of only “30 days after the prescribed time [to appeal] or
14 days after the date when the order granting the motion is entered,
whichever is later.” Fed. R. App. P. 4(a)(5)(C). That means at most, the court
can extend the plaintiff’s deadline for appealing to April 2, 2025.
The court GRANTS the plaintiff’s motion for an extension of time to
appeal. Dkt. No. 6. The court ORDERS that the plaintiff must file his notice of
appeal no later than April 2, 2025.
Dated in Milwaukee, Wisconsin this 12th day of March, 2025.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge
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